IN THE CASE OF:	 

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080005768 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart. 

2.  The applicant states that he was wounded in the Philippines, Northern Luzon, by a Japanese “knee mortar” shell fragment to the abdomen and lower left leg.  On 30 January 2008, he injured his left foot and went to the hospital.  His left foot and ankle were x-rayed and a small metallic foreign body was seen in the soft tissue at the medial aspect of his lower left leg.  He has not seen combat since World War II and feels this was caused by the shelling from the Japanese on Luzon.  He further states that some of the most active combat time on the Northern Luzon was in April, May, and June of 1945.  They had several encounters with the Japanense patrols trying to infiltrate their lines.

3.  The applicant further states that on one occasion, about 9 April 1945, while escorting a group of Philippine porters carrying supplies to the lines, they were shelled with what they thought were knee mortars.  One round was a tree burst that wounded several porters and killed one.  He felt a stinging, burning sensation in his stomach at about the belt line and in the right leg close to his ankle.  After returning to base camp, he took his pocketknife and removed the piece of metal from his abdomen, but he could not remove the pieces embedded in his ankle.  A medic gave him two Band-Aids and he took off for the company area.



4.  The applicant also states that his thoughts, as a naïve eighteen year old, were, “who am I to turn in such insignificant wounds when there were several 
badly wounded men and one killed in the same incident.”  He served his country with honor in combat and feels this honorable service to his country should be reflected in his service records.  

5.  In support of his application, the applicant provides a self-authored letter, dated 10 March 2008; certificate of awards issued to another Soldier; WD AGO Form 53-55 (Enlisted Record and Report of Separation); Bronze Star Medal Letter Orders and award certificate; newspaper article from the Chicago Sunday Tribune; pictures of the Balete Pass Monument Dedication Ceremony and Balete Pass Monument; Clinical History data sheet, and a VA Form 21-4138 (Statement in Support of Claim), dated 28 March 2008.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record and documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.  

3.  The available military records show that the applicant was inducted into the Army of the United States, in pay grade E-1, on 4 August 1944 and entered on active duty on the same day.  The applicant served overseas in the Asiatic-Pacific Theater from 26 February 1945 to 8 August 1946.



4.  The applicant was honorably separated from active duty for the Convenience of the Government at Demobilization, in the rank of Technical Sergeant, on 25 August 1946. 

5.  Entries on the applicant's WD AGO Form 53-55 do not show award of the Purple Heart.  Item 31 (Military Qualification and Date) shows award of the Combat Infantryman Badge.  Item 33 (Decorations and Citations) lists the following awards:  the Asiatic-Pacific Campaign Medal, with one bronze service star; the Philippine Liberation Ribbon, with one bronze service star; the World War II Victory Medal; the Good Conduct Medal; and the Army of Occupation Medal, with Japan Clasp.  Item 55 (Remarks) lists the award of the Honorable Service Lapel Button and three Overseas Service Bars.

6.  Item 34 (Wounds Received in Action), of the WD AGO Form 53-55, shows the entry "None" to indicate the applicant was not wounded while he served in the Asiatic-Pacific Theater.  The applicant affixed his right thumb print to Item 54 (Right Thumb Print) and placed his signature in Item 56 (Signature of Person Being Separated) to indicate that the information recorded on the form was correct/complete to the best of his knowledge.

7.  There are no orders or evidence in the applicant’s available records that show he was awarded the Purple Heart.  There is also no evidence in the available records that indicate he was wounded or treated for wounds as a result of hostile action.  

8.  The applicant's available records contain a DD Form 215 (Correction to DD Form 214), dated 6 January 2004, which corrected his WD AGO Form 53-55, dated 25 August 1946, by adding the Bronze Star Medal and the Philippine Presidential Unit Citation to those awards already listed.

9.  The applicant submitted a copy of a newspaper article that highlights his participation in the capture of the strategic Balete Pass.  He also included pictures of the Balete Pass Monument Dedication Ceremony and Balete Pass Monument.  The applicant further submitted documentation that shows after an injury to his right ankle on 30 January 2008, an x-ray showed a small metallic foreign body within the soft tissues at the medial aspect of his lower leg above the ankle.  On his VA Form 21-4138, dated 28 March 2008, the applicant requested the newspaper article from the Chicago Sunday Tribune about him taking part in the Battle of Balete Pass be used for the award of the Purple Heart.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against the enemy or as a result of hostile action.  Substantiating evidence must be provided 
to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, to be awarded the Purple Heart, it is necessary to establish that a Soldier was wounded or injured in action.  There is no evidence of record, and the applicant has provided insufficient evidence, which shows that he was awarded the Purple Heart or that he was wounded or treated for wounds as a result of hostile action during World War II.  Based on the foregoing, the applicant does not meet the regulatory requirement for award of the Purple Heart; therefore, he is not entitled to this award.  

2.  The applicant’s contentions that his being wounded by motor shell fragment in 1945 and the 2008 finding of a small metallic foreign body in the soft tissue at the medial aspect of his lower right leg should be used as a basis for award of the Purple Heart have been considered.  However, without evidence that he was treated for a wound or wounds received as a direct result of enemy action and that his injuries were made a matter of official record, the applicant is not entitled to award of the Purple Heart or changing the criteria for this award so he could become eligible for the award. 

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005768



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ABCMR Record of Proceedings (cont)                                         AR20080005768


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